Grounds for Divorce in Turkey and in Romania; A Comparative Study

ADMD Law Office, Sofian Bianca

1. Introduction

Although not all of them are stipulated by the laws, grounds for divorce are multiplying at many jurisdictions given the fact that divorces are becoming more common in educated societies. The legislations of different countries tried to reflect these common grounds in a compact manner, although, most of the time, they are not stipulated in an exhaustive one, leaving judges leverage.

2. Main Grounds for Divorce in Turkey

In Turkey, Articles 161 to 166 of the Turkish Civil Law note that there are two (2) main types of divorce grounds: special and general.

The special ones are divided into six (6) categories:

adultery,

deliberate attempt to kill, maltreatment or severe humiliation,

committing a crime and unreasonable behavior,

desertion,

mental disease,

irretrievable breakdown of marriage.

Whereas the general grounds are divided into three (3) categories:

incompatibility,

coming to a mutual agreement on divorce,

living apart for three (3) years after an application for dissolution of marriage is denied by the courts.

3. Main Grounds for Divorce in Romania

On the other hand, in Romania the divorce grounds are provided in the Article 373 of the Civil Code as the following:

the agreement between spouses, the request of both spouses or the request of one of the spouses if the other one agrees,

when, because of serious grounds, relations between spouses are seriously injured and the continuance of the marriage is no longer possible,

at the request of one of the spouses after a separation which lasted at least 2 years,

at the request of the spouse whose health condition makes it impossible to continue the marriage.

4. Similar Grounds of Divorce in both Jurisdictions

4.1. Adultery

In Turkey, adultery is defined as voluntary sexual intercourse between one of the spouses and a third party. Article 161 of the Turkish Civil Law notes that if one of the spouses commits adultery, the other spouse will be entitled to file a lawsuit for dissolution of their marriage. The spouse has a period of six (6) months after the discovery of such reason, and within five (5) years following the date of the act of such adultery under any circumstances. If there is one of such adulteress act, the date in which it was committed will be taken into consideration form the commencement of the above mentioned legal periods for application. In case the adultery repeated within a period of time, the last one will be considered for the application process. If the other spouse forgives such adultery, his/her right to file such lawsuit will expire.

In the Romanian legislation, adultery has no terms and no boundaries, this is why, when it is committed, the judge, after analyzing the evidence, will use such ground for divorce based on his own discretion and review.

4.2. Desertion

Article 164 of the Turkish Civil Law notes that if one of the spouses deserts the other in order to refrain from his/her matrimonial obligations or due to an unjustified reason and fails to come back for minimum six (6) months, if the separation is still pending and if the legal notice sent by the court to the deserter spouse upon an application by the other spouse remains unanswered, the deserted spouse is entitled to file a lawsuit for divorce.

The term desertion is defined as the termination of union of the spouses. Accordingly the intent of the departing spouse has to be taken into account, whereas a spouse leaving the other spouse to serve mandatory military service, time of imprisonment, for healthcare reasons based on sickness, purposes of business trips or for other similar reasons shall not be deemed as desertion since there is no intent to desert the spouse by the other.

The deserted spouse is entitled to apply to the court for serving of a legal notice on the deserter spouse following as from the end of the fourth month, and therefore as from the beginning of the fifth month of the desertion. Furthermore, once such a legal notice is served, the deserted spouse shall not be able to file a divorce claim at the relevant court for two months from the date of the date of such notice. . The said legal notice will invite the deserter spouse to come back within two (2) months at the latest and notify the sanctions to be enforced if he/she fails to comply.

As mentioned above, the Romanian legislation does not provide a term for the unjustified leaving of the conjugal home, but according to the case precedent, it is consider that the desertion has to last a certain period of time in which the spouse who files the lawsuit must have a strong belief that the defendant left home and is not going to fulfill his marital duties anymore.

4.3. Attempt to Kill, Maltreatments & Sever Humiliation

Article 162 of the Turkish Civil Law orders that if any of the spouses deliberately attempts to kill the other, maltreats the other or severely humiliates the other, the other spouse will be entitled to file a lawsuit for dissolution of their marriage. The first of these legal grounds is defined as a malicious attempt by one of the spouses to kill the other. If one of the spouses acts in a way meaning to kill the other, such legal ground shall be deemed to have been fulfilled. The second of these legal grounds is maltreatment of one of the spouses by the other, which includes beating the other spouse in a ruthless way, locking him/her in a room, tying his/her feet or hands, or leaving him/her hungry. The third of these legal grounds is severe humiliation of one of the spouses by the other, defined as acting in a way of dishonoring the other spouse, including throwing the other out of the family house or insulting the other. Such actions can be declared in verbal or written form to the court.

In Romania, such ground for divorce is set forth within the term ‘violence’, and therefore it has a wider range of applicability, including any type of violence, even those mentioned by the Turkish law. The reason for which they are not exhaustively listed is to allow the law the flexibility to deem any acts that are not listed but are violent and harms a person physically and/or emotionally nonetheless, as violent and unlawful. Hence, the determination of the facts of the case and whether or not the acts constitute violent and unlawful behavior shall be at the sole discretion of the relevant Court.

4.4. Irretrievable Breakdown of Marriage

Article 165 of the Turkish Civil Law defines irretrievable breakdown of marriage as a general legal ground for divorce. If the marriage has broken down in an irretrievable way so that the spouses cannot be expected to continue their marriage, any of them will be entitled to file a lawsuit for divorce. In case of such lawsuit, if the petitioner’s fault is more severe, the respondent will be entitled to object the lawsuit. If the right in question is misused, the judge might dissolve the marriage if it is not worth to be saved for the respondent and the children. If the marriage has lasted at least one (1) year and both partners apply in agreement for a divorce or one of them agrees the other partner’s application for a divorce, it will be considered that the marriage irretrievably broke down.

This ground is mentioned in the first paragraph of the Romanian Civil Code provided as the agreement between spouses, the request of both spouses or the request of one of the spouses if the other one agrees. Therefore, there are no major differences regarding this, excepting that there is no term to file the lawsuit on such ground.

5. Different Grounds of Divorce in Both Legislations

As we can see, as a main difference between these two countries, the special grounds of Turkey are more or less included in the second ground of the Romanian Civil Code. This is because by ‘serious grounds’ it is understood as those powerful reasons that justify the dissolution of marriage through divorce, due to the fact that for the one who requests it, the marriage has become impossible to continue. Although the legal text does not particularly specify them, it is considered that the action for divorce is submitted when marriage lacks substantive elements under which has been born in the first place like mutual affection, friendship, moral and material support etc. One of the most important bases in order to determine its value is the legal practice, namely the jurisprudence. Therefore, during time, there have been outlined some of the most common reasons for divorce including:

the unjustified leaving of the conjugal home imputed to the defendant,

adultery,

violence,

physiological incompatibility,

incurable disease of one of the spouses hidden to the other when signing the marriage act,

unjustified absence of consent in sexual intercourse

misconduct of one of the spouses manifested by physical violence or other type of violence.

5.1. Committing a Crime or Unreasonable Behavior

This reason has a certain correspondence with the violence provided in the Romanian law, but the difference is the fact that the significance of it results from the Article 163 of the Turkish Civil Law which defines it like “If one of the spouses commits a humiliating crime or unreasonable behavior and the other spouse can no longer be expected to continue to live together with the faulty spouse, the other spouse will be entitled to file a lawsuit for dissolution of their marriage”. In addition, unlike the physical or psychological violence, those 2 actions refer to doings towards a third party and not the other spouse. The term “unreasonable behavior” is defined as a way of life disrespecting the morality, dignity and honor or self-respect principle of the society. However, such action will not be considered a legal ground for dissolution of marriage unless it has been committed while the parties are married.

The difference towards the Romanian law is that the violence is committed between spouses and not against a third party. The humiliating situation of one of the spouse caused by the severe acts of the other one it is not considered as a strong enough reason to file a lawsuit for divorce, given the fact that marriage is supposed to offer mutual understanding and support when needed. However, by parity of reasoning, it might have a correspondence with the last mentioned reason resulted from the legal practice. This is because by ,misconduct of one of the spouses manifested by physical violence or other type of violence’ it is understood that any kind of unusual behavior will be considered as valuable as long as it denigrates the social and professional life of the other.

5.2. Mental Disease

Apparently, this can appear as a common reason except that, in the Romanian legislation, it is not necessary to be a mental disease but an incurable one and which has been hidden when the marriage took place. Also, in the fourth paragraph of the Romanian’s Civil Code Article, we can see that the one who is demanding is actually the one suffering from the disease, due to the fact that his morality leads him to do so, this being a different reason from the one mentioned above. However, if he is not acting in such manner, the other spouse, if the marriage cannot continue because of the behavior resulted from this situation, can file the lawsuit according to the burden caused to him/her.

On the other side, Article 165 of the Turkish Civil Law notes that if one of the spouses suffers a mental disease, the marriage becomes intolerable to the other spouse due to such disease, and the medical committee of a public hospital issues a report to confirm that the said mental disease is incurable, the other spouse will be entitled to file a lawsuit for divorce. This does not mean that every mental disease will be considered a special legal ground for divorce, but only those such as schizophrenia or paranoia. Unlike the Romanian stipulation, the burden of proof for such intolerability remains with the suing party.

5.3 Physiological Incompatibility

As uncommon as it might seem, nowadays physiological incompatibility is becoming a frequent reason for which most married couples are divorcing. Nevertheless, then majority of the couples start their intimate life before marriage, unlike to how it used to be years ago, and for this reason does not seem to have solid bases to argue dissolution of marriage, although it is anticipated as a common ground in the Romanian legal practice.

5.4. Unjustified Absence of Consent in Sexual Intercourse

Since marriage took place or even before, it is assumed that spouses have mutual consent when it comes to their intimate relationship. However, sometimes it happens that one spouse refuses the other for various reasons such as fatigue, stress caused by their occupation, malaise and others. Still, if such refusal occurs without the existence of one of the above reasons, having no justification and persisting for a long time, legal practice considered this as one of the founded reasons for divorce. In some situations, this absence of consent might lead to rape which is considered to have happened even if the couple is married, being incriminated in the Article 218 of the Romanian Penal Code.

5.5 Separation Lasted for at Least Two (2) Years

Unlike the Turkish law which notes that living apart for three (3) years after an application for dissolution of marriage is denied by the courts’ as a general ground for divorce, the Romanian Civil Code stipulates that it is needed that the spouses live together for two (2) years in order to file a lawsuit for divorce. This is because the court needs to assure that the couple has tried for a period of time to make their relationship work. In the Turkish system, the couple can file the lawsuit whenever they desire, but the court will accept their request only after a period of three (3) years since they have lived separately.

Concluding, although it is an undesirable ending of a marriage, divorce is seen increasingly often no matter the state, religion or circumstances, making divorce cases no longer being considered as a rarity. For this reason, as we have seen in the above mentioned grounds for divorce, legislations from all over the world tried to stipulate them in order to follow such solution only in particular situations, so that marriage cannot be disbanded easily, except the serious cases in which injury is encountered. With the hope that these cases will become more rare, people should try to offer mutual trust, understanding and support, which could easily decrease such unpleasant situations.